Why the Telecoms Shouldn't Get Immunity

Robert B. Reich
Marketplace, November 28, 2007


You’d think anyone who remembered J. Edgar Hoover’s FBI and Nixon’s CIA, the Federal Intelligence Surveillance Act of 1978 – let alone the Fourth Amendment to the Constitution – might be concerned about the government illegally snooping on Americans. But executives at the nation’s biggest telecoms -- AT&T, Verizon, and others -- didn’t blink an eye when the National Security Agency came knocking. You want records of domestic phone calls? Sure, help yourself! Emails? Yeah, we got tons. They’re yours!

When word of this leaked out and the companies got sued by Americans who didn’t particularly like the idea of government rummaging through everything they said or wrote, the telecoms went to Congress and complained it wasn’t their fault. They deserve immunity from such lawsuits, they argue. They were only following orders. Congress is about to decide whether their argument holds water. It doesn't.

Only following orders? What if the government told telecoms to use their technologies to spy on American bedrooms, or turn over our bank accounts, or our photographs, home videos, anything else we store on computers or transmit through cables or over the Internet? The "only following orders" excuse would make telecoms extensions of our spy agencies.

Corporate executives have a duty to disobey government orders when they have reason to believe those orders are illegal or unconstitutional -- and make the government go to court to get what it wants. The duty to refuse is especially important when it comes to the nation’s telecoms, whose technological reach is extending deeper and deeper into our private lives.

Sure, there’s a delicate balance between fighting terrorism and protecting civil liberties. But that’s for courts to decide – not spy agencies and not telecom executives. If in doubt, the telecoms can go to the special courts set up precisely to oversee this balance, and get a declaratory judgment. Yet the only way to keep pressure on them to do this and not become agents of our spy agencies is to continue to allow Americans to sue them for violating their legal rights.